(dissenting).
It is my view that the plea of prescription filed by the defendant John Truett is not well founded under the provisions of either R.S. 15:8 or R.S. 15:9.
Under Article 8 of the Code of Criminal Procedure, R.S. 15:8, when three years elapse in a felony case from the date of the filing of the bill of information without the accused being tried, the court may cause a nolle prosequi to be entered. Under the provisions of the last paragraph of this article, however, it is specifically provided that nothing in the article shall apply to an accused -person who has escaped trial through dilatory pleas. In the instant case an information was filed against defendant on August 9, 1951. On May 19, 1952, less than three years from the date of the filing of the bill of information, defendant filed a motion for a bill of particulars, a motion for a preliminary hearing, and a plea to the jurisdiction. The motion for a preliminary hearing and the motion for a bill of particulars had the effect of retarding the progress of the prosecution and are therefore dilatory in nature. See State v. Bradford, 217 La. 32, 45 So.2d 897 (on rehearing). Consequently R.S. 15 :8 is not applicable in the instant case since three years had not elapsed between the date of the filing of these dilatory pleas by defendant and the date of the filing of his plea of prescription on April 6, 1955.
Article 9 of the Code of Criminal Procedure, R.S. 15 :9, is also without application in the instant case. This article pertinently provides : “Whenever it shall have been established to the satisfaction of any court in which any criminal prosecution shall be pending that the prescriptive periods as herein provided have elapsed since the last date upon which any steps shall have been taken by the state in such prosecution, * * * the court shall order the dismissal of said prosecution * * (Emphasis mine.) On April 30, 1952, the accused was arraigned and pleaded not guilty. Arraignment is obviously a step in the prosecution. The action of the court on May 19, 1952, permitting the accused to withdraw his plea of not guilty did not affect the fact that the accused was arraigned by the State or that this arraignment was a step in the prosecution. Therefore, since three years had not elapsed between the date of the arraignment and the date the plea of pre> *969scription was filed by defendant, prescription had not accrued under R.S. 15:9.
I respectfully dissent.